Gujarat High Court
Bipinchandra Harakhchand Mehta vs State Of Gujarat on 31 July, 2023
NEUTRAL CITATION
R/CR.MA/15454/2022 ORDER DATED: 31/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 15454 of 2022
In R/CRIMINAL APPEAL NO. 1650 of 2022
With
R/CRIMINAL MISC.APPLICATION NO. 15455 of 2022
In
CRIMINAL APPEAL NO. 1651 of 2022
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BIPINCHANDRA HARAKHCHAND MEHTA
Versus
STATE OF GUJARAT
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Appearance:
RUSHI B BHAVSAR(9342) for the Applicant(s) No. 1
MR. NISHITH K. JOSHI FOR MR BN LIMBACHIA(3454) for the Respondent(s)
No. 2
MR. R.C. KODEKAR, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 31/07/2023
COMMON ORAL ORDER
1. With the request and consent of learned advocates appearing for the respective parties, these Criminal Misc. Applications are taken up for final disposal. Since the issue involved in these applications are identical and as such these applications are taken up conjointly by treating the R/Criminal Misc. Application No. 15454 of 2022 as a lead matter and the facts are taken from it for the sake of convenience.
2. This application is filed by the original complainant seeking leave to appeal against the judgment and order dated 25.04.2022 Page 1 of 20 Downloaded on : Sat Sep 16 23:40:20 IST 2023 NEUTRAL CITATION R/CR.MA/15454/2022 ORDER DATED: 31/07/2023 undefined passed by learned Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Surat, in Criminal Case No.45570 of 2018 and Criminal Case No. 45572 of 2018. By the said judgment and order, the learned Magistrate has proceeded to record the acquittal of present respondent No.2-original accused for the offence punishable under Section 138 of the N.I. Act.
3. The gist of the complaint presented before the learned Magistrate under Section 138 of the N.I. Act, is summarized as under:
3.1 It is contended by the complainant that the complainant and the accused were known to each other as they hail from neigbouring village. The accused was engaged in business of construction and was in need of financial help of an amount of Rs.10 Lakhs. Such financial help was extended by the complainant. Against which, the accused had handed over two cheques to the complainant dated 17.04.2018 of an amount of Rs.4,99,000/-. It is further contended that the aforesaid cheques were presented before the concerned bank. Out of two cheques, one cheque was presented on 17.04.2018 and the amount was realized. The second cheque was deposited on 11.07.2018, however, the said cheque was dishonoured on 12.07.2018 with endorsement of "funds insufficient".Page 2 of 20 Downloaded on : Sat Sep 16 23:40:20 IST 2023
NEUTRAL CITATION R/CR.MA/15454/2022 ORDER DATED: 31/07/2023 undefined 3.2 Upon receipt of memo of return of cheque issued by the concerned bank, the complainant was constrained to issue statutory demand notice dated 27.07.2018, which was served upon the respondent-accused through R.P.A.D. on 28.07.2018. It is further contended that the accused intentionally and deliberately did not respond to the said statutory notice and on expiry of the prescribed period, the complainant had preferred the complaint under Section 138 of the N.I. Act before the court of learned Additional Senior Civil Judge & Additional Chief Judicial Magistrate at Surat. The said complaint was registered as Criminal Case No.45570 of 2018. 3.3 The verification of the complainant was examined by the learned Magistrate and being satisfied, summons came to be issued upon the respondent-accused, which was duly served. The accused had appeared before the learned Magistrate and his plea was recorded, wherein the accused had denied the allegations made by the complainant. The learned Magistrate has proceeded with the trial by treating it as summons triable case. The complainant had lead oral as well as documentary evidence. The details of the same are reproduced as under:
Oral evidence produced by the complainant:-
Exh. Description Page 3 of 20 Downloaded on : Sat Sep 16 23:40:20 IST 2023 NEUTRAL CITATION R/CR.MA/15454/2022 ORDER DATED: 31/07/2023 undefined 4 Examination in chief of affidavit at Exh.145 filed by
complainant Sri. Bipinchandra Harakhchand Mehta Documentary evidence produced by the complainant:-
Exh Description
10. Copy of pass-book in respect of Cheque No.122103 for Rs.4,99,000/-
11 Original cheque No.122106 12 Return memo 13 Office copy of notice 14 Receipt of post office in respect of notice sent to the accused 15 Status report of postal department in respect of notice served to the accused 24 Copy of income tax report for the year 2014-15 in respect of the complainant 25 Copy of income tax report for the year 2015-16 in respect of the complainant 26 Copy of income tax report for the year 2016-17 in respect of the complainant 27 Copy of income tax report for the year 2017-18 in respect of the complainant 28 Copy of income tax report for the year 2018-19 in respect of the complainant 29 Summary of income tax report 3.4 The accused was offered opportunity to lead the evidence. The further statement of the accused under Section 313 of Criminal Procedure Code, 1973, (for short "Cr.P.C.") was recorded by the learned Magistrate. Apart from denying the allegations made by the complainant, the accused had refused to examine any witness or lead any documentary evidence. The specific defence was raised by the Page 4 of 20 Downloaded on : Sat Sep 16 23:40:20 IST 2023 NEUTRAL CITATION R/CR.MA/15454/2022 ORDER DATED: 31/07/2023 undefined accused that at the time of lending of money, the accused had tendered four blank cheques as security, which was handed over to the complainant as well as his son. Though, the amount has been repaid, the complainant has misused the aforesaid blank cheques, which were given as the security and has filed false complaint. The parties have tendered their written arguments before the court. The trial court, after examining the evidence, which has come on record;
and considering the submissions made by learned advocates appearing for the respective parties, has passed the impugned order of acquittal. Hence, this application at the instance of the complainant.
4. I have heard Mr. Rushi B. Bhavsar, the learned advocate on record for the applicant and learned advocate Mr. Nishith K. Joshi appearing for Mr. B.N. Limbachia, the learned advocate on record for the respondent No.2-original accused.
5. Mr. Rushi B. Bhavsar, the learned advocate on record for the applicant, has vehemently submitted that the accused has never denied the issuance of cheque nor has disputed his signature and details of the cheque. In fact, the defence is raised that the cheque was handed over as security cheque towards the amount borrowed by Page 5 of 20 Downloaded on : Sat Sep 16 23:40:20 IST 2023 NEUTRAL CITATION R/CR.MA/15454/2022 ORDER DATED: 31/07/2023 undefined him. In other words, the accused has admitted their existed legal debt towards the complainant. He has also relied upon Section 118 and Section 139 of the N.I. Act and has submitted that once the signature was not disputed on the cheque, the learned trial court ought to have drawn presumption that the cheque was issued towards the discharge of the aforesaid legal debt. The reliance was placed upon the decisions of the Hon'ble Supreme Court in the case of (1) Basalingappa vs. Mudibasappa reported in 2019 (0) AIJEL- SC 63955; (2) Kalamani Tex vs. P. Balasubramanian reported in 2021 (0) AIJEL-SC 66998; and (3) Triyambak S. Hegde vs. Sripad reported in 2021 (0) AIJEL-SC 67771. By relying upon the aforesaid authorities, the learned advocate for the applicant has submitted that in absence of any cogent material being brought on record, the respondent- accused had failed to raise a probable defence to meet with the standards of preponderance of probability. He has further submitted that the denial of passing of consideration, cannot take form of probable defence, shifting the burden upon the complainant to prove his case beyond reasonable doubt. He therefore, urged this Court that an arguable case is made out and leave to prefer appeal may be granted.
6. On the other hand, present application seeking leave to appeal has been vehemently objected by learned advocate Mr. Nishith K. Page 6 of 20 Downloaded on : Sat Sep 16 23:40:20 IST 2023 NEUTRAL CITATION R/CR.MA/15454/2022 ORDER DATED: 31/07/2023 undefined Joshi appearing for Mr. B.N. Limbachia, the learned advocate on record for the respondent No.2-original accused. He has invited attention of this Court to the reasons recorded by the trial court while recording the impugned order of acquittal. The attention of this Court was invited to the cross-examination of the complainant, wherein the complainant has admitted that the accused had borrowed the amount of Rs.10 lakhs from the complainant. Out of which, part of the amount was deposited by the accused in the account of the son of the complainant i.e. Hemal Bipinchandra Mehta (the complainant in second complaint i.e. R/Criminal Misc. Application No. 15455 of 2022). 6.1 He has further submitted that in cross-examination, the complainant has further conceded the fact that the accused had handed over four cheques to the complainant as security. He has also drawn attention of this Court to the fact that the learned Magistrate had noticed discrepancy in the version of the complainant as against the deposition of the complainant especially in cross-examination. According to him, the learned Magistrate has rightly noticed the discrepancy, which goes to the very maintainability of the complaint. He therefore, submitted that no error can be found with the approach of learned Magistrate in recording the impugned order of acquittal.
7. Having heard the learned advocates appearing for the Page 7 of 20 Downloaded on : Sat Sep 16 23:40:20 IST 2023 NEUTRAL CITATION R/CR.MA/15454/2022 ORDER DATED: 31/07/2023 undefined respective parties and having carefully perused the impugned order as well as the authorities relied upon by learned advocate for the applicant, this Court notices that the learned Magistrate has initially drawn presumption as available under Sections 118 and 139 of the N.I. Act in favour of the complainant, in absence of any dispute with regard to the signature of accused on the disputed cheque. Having drawn such presumption, the learned Magistrate has thereafter, proceeded to evaluate and appreciate the evidence, which has come on record, more particularly, the learned Magistrate has taken into consideration the cross-examination of the complainant.
8. The learned Magistrate has noticed that four cheques were issued by the respondent-accused in favour of the complainant. Indisputably, it has transpired on record that said blank cheques were handed over to the complainant by way of security cheques. The aforesaid facts leads to the inference that their existed legally enforceable debt towards the complainant for an amount of Rs.10 Lakhs. The defence of accused has emerged on record in the form of Section 313 of Cr.P.C. statement. On close appreciation of the evidence of complainant, it has transpired that the details particulars of date, amount and name of complainant were entered by the accused in presence of the complainant as reflected in the averments made in the complaint (Exh.1) and the verification recorded by the Page 8 of 20 Downloaded on : Sat Sep 16 23:40:20 IST 2023 NEUTRAL CITATION R/CR.MA/15454/2022 ORDER DATED: 31/07/2023 undefined learned Magistrate (Exh.4), whereas in the cross-examination, the complainant has submitted that the details particulars of name, date and other details were filled up by the complainant namely Bipinchandra Harakhchand Mehta, as per the instructions of the accused. Further, the complainant has admitted in his cross- examination that total four blank cheques were handed over by the accused to the complainant. Though, the complainant claims to have handed over amount of Rs.10 Lakhs in cash to the accused, no detail particulars of lending of such amount except for the fact that such amount was given in installment from December-2017 to January- 2018, has been brought on record by the complainant. At one stage, the accused has raised the defence that part payment of cheque bearing No.122103 of an amount of Rs.4,08,000/- has been deposited in the account of the complainant, which has been acknowledged by the complainant. Similarly, part payment of an amount of Rs.4,99,000/- by cheque No.122104 has been realized in the account of his son Hemalkumar Bipinchandra. Thus, the claim put forward by the complainant with regard to the disputed amount of Rs.10 Lakhs and the issuance of cheques towards such amount, has been successfully rebutted by the respondent-accused in the cross-examination of the complainant.
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9. At this stage, it would be appropriate to consider the precedents laid down by the Hon'ble Supreme Court on the issue on hand. The Hon'ble Apex Court had the occasion to appreciate and interpret aforesaid provision in case titled as Kusum Ingots and Alloys Ltd. Vs. Pennar Peterson Securities Ltd. (2000) 2 SCC 745. In the said judgment Hon'ble court observed that in order to successfully prosecute the drawer of a cheque for an offense U/s. 138 N.I. Act, following facts are required to be proved successfully.
"a) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for discharge of any debt or other liability.
b) That cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, which ever is earlier.
c) That cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank.
d) The payee or the holder in the due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque, within 15 days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid.
e) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of said notice.........."Page 10 of 20 Downloaded on : Sat Sep 16 23:40:20 IST 2023
NEUTRAL CITATION R/CR.MA/15454/2022 ORDER DATED: 31/07/2023 undefined ".............Judicial statements have deferred as to the quantum of rebutting evidence required. In Kundun Lal Rallaram Vs. Custodian, Evacuee Property, Bombay AIR 1961 SC 1316, this Court held that the presumption of law under Section 118 of presumption of fact raised under Section 114 of the Evidence Act. The decision must be limited to the facts of that case. The more authoritative view has been laid down in the subsequent decision of the Constitution Bench in Dhanvantrai Balwantrai Desai v. State of Maharashtra :
1964 Cri. L 1437 : 1964 Cril 1437, where this Court reiterated the principle enunciated in State of Madras v. Vaidyanath Iyer (supra) and clarified that the distinction between the two kinds of presumption lay not only in the mandate to the Court, but also in the nature of evidence required to rebut the two. In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which "might reasonably be true and which is consistent with the innocence" of accused. On the other hand in the case of mandatory presumption "the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under S.114 of the Evidence act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by provision cannot be said to be rebutted......"Page 11 of 20 Downloaded on : Sat Sep 16 23:40:20 IST 2023
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10. Section 118(a) and Section 139 of the N.I. Act are mentioned in verbatim below:-
"Section 118 : Presumptions as to negotiable instruments,- Until the contrary is proved, the following presumptions shall be made:-
(a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted indorsed, negotiated or transferred, was accepted, was indorsed, negotiated or transferred for consideration;"
"Section 139 : Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability."
11. It is a well settled legal position that presumptions U/s. 118 and 139 of the N.I. Act are rebuttable presumptions and burden lies on accused to prove that he had no liability/debt on the date of issue of cheque. It is also a settled principle of law that to bring home an offence under any of the penal provisions, it is essential to prove the case beyond reasonable doubt and ingredients of offence should be satisfied. Hon'ble Apex court had the occasion to appreciate said provisions in certain case laws which are relevant for the purpose of adjudication of appeal. Relevant observations of said case laws are mentioned in my subsequent paragraphs.
12. In case titled as M.S.Narayana Menon Vs. State of Kerala Page 12 of 20 Downloaded on : Sat Sep 16 23:40:20 IST 2023 NEUTRAL CITATION R/CR.MA/15454/2022 ORDER DATED: 31/07/2023 undefined (2006) 6 SCC 39, it was held that ;
"While dealing with that aspect in a case under Section 138 of the Negotiable Instruments Act, 1881, this court held that presumptions under sections 118 (a) and 139 of the Act are rebuttable and the standard of proof required for such rebuttal is preponderance of probabilities and not proof beyond reasonable doubt. The Court observed:
In terms of section 4 of the Evidence Act whenever it is provided by the Act that the court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The words "proved" and "disproved" have been defined in section 3 of the Evidence Act (the interpretation clause).
Applying the said definitions of "proved or "disproved" to the principle behind section 118
(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist.
For rebutting such presumption, what is needed is to raise a probable defense. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which the relies.
Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence to exist or consider its existence to be reasonable probable, the standard of reasonability being that of Page 13 of 20 Downloaded on : Sat Sep 16 23:40:20 IST 2023 NEUTRAL CITATION R/CR.MA/15454/2022 ORDER DATED: 31/07/2023 undefined the "prudent man".
13. In Case titled as Hiten P.Dalal Vs. Bratindranath Banerjee, reported in (2011) 6 SCC 16, it was held as under :-
"Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary."
14. The Hon'ble Apex court in a case of Krishna Janardhan Bhatt Vs. Dattatraya G.Hegde , reported in (2008) 4 SCC 54 , has observed;
"Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies."
"Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely, presumption of innocence as human rights and the Page 14 of 20 Downloaded on : Sat Sep 16 23:40:20 IST 2023 NEUTRAL CITATION R/CR.MA/15454/2022 ORDER DATED: 31/07/2023 undefined doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same."
15. Further, in Bharat Barrel and Drum Manufacturing Company Vs. Amin Chand Pyarelal, reported in (1999) 3 SCC 35, it was observed as under:-
"Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non- existence of a consideration by raising a probable defense. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favor. The court Page 15 of 20 Downloaded on : Sat Sep 16 23:40:20 IST 2023 NEUTRAL CITATION R/CR.MA/15454/2022 ORDER DATED: 31/07/2023 undefined may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defense. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non- existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist."
"Section 139of the Act is an example of reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonor of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offense made punishable by Section 138 can be better described as a regulatory offense since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions."
"In the absence of compelling justification, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the "preponderance of probabilities". Therefore, if the accused is able to raise a probable defense which creates doubts Page 16 of 20 Downloaded on : Sat Sep 16 23:40:20 IST 2023 NEUTRAL CITATION R/CR.MA/15454/2022 ORDER DATED: 31/07/2023 undefined about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in citations, the accused can rely on the materials submitted by the complainant in order to raise such a defense and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
16. In the Case of M/s. Kumar Exports Vs. M/s. Sharma Carpets reported in (2009) 2 SCC 513, passed by Hon'ble Supreme Court, it has been held as under:-
"When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non- existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence Page 17 of 20 Downloaded on : Sat Sep 16 23:40:20 IST 2023 NEUTRAL CITATION R/CR.MA/15454/2022 ORDER DATED: 31/07/2023 undefined of debt, apparently would not server the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non- existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also an option to prove the non- existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue."
17. In Case of John K. John vs. Tom Varghese reported in 2007 (4) Civil Court Cases 690 (S.C), it was held as under :- Page 18 of 20 Downloaded on : Sat Sep 16 23:40:20 IST 2023
NEUTRAL CITATION R/CR.MA/15454/2022 ORDER DATED: 31/07/2023 undefined ".....Presumption raised in terms of Section 139 of the Act is rebuttable. If, upon analysis of the evidence brought on records by the parties, in a fact situation obtaining in the instant case, a finding of fact has been arrived at by the High Court that the cheques had not been issued by the respondent in discharge of any debt, in our opinion, the view of the High Court cannot be said to be perverse warranting interference by us in exercise of our discretionary jurisdiction under Article 136 of the Constitution of India. The High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court s of fact that the complainant did not approach the court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged....."
18. In the light of above legal position it emerges that in a case filed under Section 138 of the N.I. Act, undoubtedly the complainant has to prove the basic ingredients of said provision, beyond reasonable doubt. The presumptions under Section 138 of the N.I. Act do favor the complainant but those presumptions are rebuttable. As per the scheme of the Act, the Accused can rebut those presumptions based on preponderance of probabilities. It is not required that in each and every case accused has to lead defense evidence for rebutting aforesaid presumptions. Accused can rebut the aforesaid Page 19 of 20 Downloaded on : Sat Sep 16 23:40:20 IST 2023 NEUTRAL CITATION R/CR.MA/15454/2022 ORDER DATED: 31/07/2023 undefined presumptions on the basis of material brought on record by the complainant.
19. Keeping in mind above mentioned law and understanding of law, in present circumstances, the learned Magistrate has rightly called upon the complainant to prove his case beyond reasonable doubt. In absence of any cogent material being brought on record by the complainant to prove the very existence of the legal debt of an amount of Rs.10 Lakhs on record, the learned Magistrate has rightly rejected the complaint and has acquitted the respondent-accused under Section255(1) of the Cr.P.C for the alleged offence under Section 138 of the N.I. Act.
20. In the opinion of this Court, no arguable case is made out to grant leave to appeal. Hence, present application seeking leave to appeal stands rejected. Consequently, criminal appeal also stands dismissed. Rule stands discharged. Registry is directed to maintain copy of this order in each matter.
(NISHA M. THAKORE,J) SUYASH SRIVASTAVA Page 20 of 20 Downloaded on : Sat Sep 16 23:40:20 IST 2023